DECISION OF THE TRIBUNAL
Reference:
D_18_2010
Gender:
Female
Aged:
11
Type of Reference:
CSP not required
1. The Reference:
(“the Appellant”) made a Reference to the Tribunal in terms of Section 18(3)(b) of
the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).
This is in respect that the Education Authority (“the Education Authority”) deemed
that the Appellant’s daughter, The Child Ali (“the child”), does not require a Coordinated Support Plan (CSP). The Appellant disagrees with this decision.
2. Decision of the Tribunal:
The Tribunal refuses the Reference and accordingly in terms of power contained
within Section 19(2) of the Act confirms the Decision of the Education Authority
dated 14 October 2010.
3. Preliminary Matters:
The Reference was Case Managed prior to the Oral Hearing in terms of two
Conference Calls. The identity and order of the witnesses was agreed in advance.
One of the Appellant’s witnesses, Dr P, was unable to attend the Tribunal personally
and her evidence was received in written form. A number of late papers received
from both parties shortly prior to the Hearing were received on the day of the
Tribunal.
4. Summary of Evidence:
The Tribunal had regard to the bundle of papers (T1-T75, A1-A135 and R1-R112).
The Tribunal also heard oral evidence from:1
Witness A, Head Teacher, School A Primary School
Witness B, Educational Psychologist,
Witness C, Community Nurse, Learning Disabilities Service
The Appellant,
Mum
Grandmother
The Child’s own views which had been recorded and transcribed (A135) were
considered.
5. Findings in Fact:
1.
The Child was born in 2000. The Child’s parents are separated. The Child
resides with her mother and elder sibling.
2.
The Child was born very prematurely and requires additional support to
benefit from school education. The factors which give rise to The Child’s
additional support needs are complex cerebral visual impairment, visual motor
integration and perception difficulties, and mild developmental delay and,
more recently, anxiety and lack of self-esteem.
3.
The Child is currently enrolled at School A Primary School. She is in primary
6. She has attended School A Primary School since the commencement of
primary 2.
4.
The Child has been the subject of a high degree of educational testing
including independent assessments instructed by The Child’s parents. There
has been varying results from such testing. It is not possible to identify why
this is so. It is likely to be as a result of different individuals carrying out
different tests at different times of the academic year as well as The Child’s
varying responses to various types of and contexts for assessment.
5.
Witness B, Area Principal Psychologist, has carried out a recent overview of
The Child’s abilities. With reference to group test scores carried out at the
same time each year, it is concluded that The Child has made reasonable,
steady and continuing progress in her reading, writing and spelling. School A
Primary School share this view of The Child’s progress.
6.
The Child is not considered by the Education Authority to require an
Individualised Education Programme. She does not have one. She has a
Personalised Learning Plan and an Additional Support Plan.
7.
The Child is taught principally by the primary 6 class teacher, Ms P. There is
a learning assistant, Mrs W, within The Child’s class on a full-time basis. She
is not specifically allocated to The Child but is available to The Child should
additional assistance be required. Notionally, two hours of her time each week
are funded through support allocated to The Child. The Child has three hours
of direct one-to-one time each week with Mrs M the learning assistant within
the support for learning base. Whilst The Child previously was allocated time
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with Mrs B, the principal support for learning teacher, within the support for
learning base at School A Primary School such level of support is no longer
required.
8.
The Child uses a bar magnifier to assist in reading documents. Reading
materials are frequently enlarged using the school photocopier for The Child’s
use.
9.
The Child has reduced functional vision and balance difficulties. This does
not significantly or adversely affect her abilities to benefit from school
education at School A Primary School.
10.
There is a lengthy history of conflict between The Child’s parents and the
Education Authority. The Child’s elder sibling, also has additional support
needs. The Child’s parents and the Education Authority have disagreed about
school provision for both The Child and sibling. The Child’s mother has
recently lodged a complaint about School A Primary School and some of the
staff members there.
11.
The Child has not been attending School A Primary School since mid January
2011. The Child is presenting as unhappy, anxious and stating a refusal to
attend. There is contradictory evidence as to the reasons why she is currently
presenting in such a manner.
12.
School A Primary School receives advice, as required, from Dr C, Consultant
Paediatrician (Visual Impairment) and L, Specialist Visiting Teacher in Visual
Impairment. School A Primary School has also consulted with Educational
Psychology Services and had access to reports from other health professionals
regarding The Child’s needs.
13.
Witness C, Community Nurse, Learning Disability Service, is working with
The Child. She has provided support to The Child with activities of daily
living. She has had eleven one-to-one sessions to date over approximately
9 months. She intends to set up further work focused on self-esteem. It is
anticipated that such sessions will take place fortnightly lasting approximately
one hour each.
6. Reasons for Decision:
The Tribunal considered all of the evidence indicated above and was satisfied that
there was sufficient evidence available to the Tribunal to reach a fair decision on the
Reference.
The issue is whether or not The Child satisfies the terms of Section 2 of the Act and
requires a Co-ordinated Support Plan (a CSP).
Section 2(1) of the Act is in the following terms:2
Co-ordinated support plans
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(1)
For the purposes of this Act, a child or young person requires a plan
(referred to in this Act as a “co-ordinated support plan”) for the
provision of additional support if
(a) an education authority are responsible for the school education
of the child or young person,
(b) the child or young person has additional support needs arising
from
(i) one or more complex factors, or
(ii) multiple factors,
(c) those needs are likely to continue for more than one year, and
(d) those needs require significant additional support to be
provided
(i) by the education authority in the exercise of any of their
other functions as well as in the exercise of their functions
relating to education, or
(ii) by one or more appropriate agencies (within the meaning
of section 23(2)) as well as by the education authority
themselves.
It was accepted by the Education Authority that subsections (a), (b) and (c) of
Section 2(1) of the Act are fulfilled. Accordingly the only matter of contention
between the parties was whether or not subsection (d) of Section 2(1) of the Act is
met.
The Tribunal has had regard to the Code of Practice – Supporting Children’s Learning
(Revised Edition). The Tribunal has discharged its duty to do so in terms of Section
19(7) of the Act.
Furthermore in reaching its determination the Tribunal has had regard to the Decision
of JT –v- Stirling Council 2007, CSIH 52 where consideration was given to the
definition of “significant” where it appears in Section 2 of the Act.
The Tribunal in particular has had regard to the frequency, nature, intensity and
duration of the additional support to be provided in addition to the identity of those
providing the support.
The Education Authority’s principal submission was that there is no significant
additional support being or to be provided by any agency other than the Education
Authority to The Child to allow her to benefit from school education. It was neither
accepted nor challenged that the additional support of the Education Authority
themselves being provided to The Child is significant although it was suggested that
this is “debatable”.
The submissions made on behalf of Appellant were to the effect that The Child does
qualify for a Co-ordinated Support Plan and meets the relevant test. No reference was
made to the statutory tests. Particular reference was made to the Code of Practice
with reference to the factors giving rise to The Child’s additional support needs. It
was submitted that The Child’s own views had not been taken into account in the
Education Authority’s decision not to issue a CSP.
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The Tribunal has been able to conclude on the basis of their findings that neither
subsection (i) or subsection (ii) of subsection (d) of Section 2(1) of the Act are
fulfilled. In such circumstances the Tribunal is bound to refuse the Reference and
confirm the earlier Decision of the Education Authority.
There is no requirement for significant additional support to be provided either by the
Education Authority in the exercise of any of their other functions as well as in the
exercise of their functions relating to education or by one or more appropriate
agencies (as defined within Section 23(2)) of the Act as well as by the Education
Authority themselves.
It was not suggested to the Tribunal that the Education Authority were providing
significant additional support in the exercise of any of their other functions as well as
in exercise of their functions relating to education. Accordingly the Tribunal focused
principally upon Section 2(1)(d)(ii) of the Act.
The Tribunal concluded that the Education Authority themselves are, as a matter-offact, providing significant additional support. This is due to day-to-day adaptations
together with the level of learning assistant support both in the classroom and support
for learning base at School A Primary School. However The Child’s additional
support needs do not require significant additional support from one or more
appropriate agencies.
Although other health professions are involved in reviewing, monitoring and advisory
roles the only other agency currently providing direct support to The Child is Witness
C, Community Nurse, Learning Disabilities Service. The extent of her involvement is
anticipated to be one-to-one sessions on a fortnightly basis for one hour’s duration
each session. It is unclear how long such involvement will continue.
The Tribunal heard evidence that it may be that in the current circumstances and in
particular standing the change in circumstances whereby The Child is currently
refusing to attend School A Primary School that there may be useful intervention of
Social Work Services or professionals from the Child & Adolescent Mental Health
Service (CAMHS) to carry out work with The Child and support her into both
returning to School A and providing support once she has returned. Whilst the
Tribunal accepted this evidence, there was no evidence upon which the Tribunal
could rely to reach a conclusion about what role, if any, such agency would actually
have, nor the intensity nor duration of such support.
The Tribunal accepts that The Child has additional support needs arising from
complex and multiple factors. This was not disputed by the Education Authority.
The Tribunal recognises the factors relevant to The Child highlighted by the
Appellant’s representative (as referred to within Chapter 5 of the Code of Practice)
and in particular those arising from her learning environment, family circumstances,
disability or health and social and emotional circumstances. Such matters however do
not assist in satisfying Section 2(1)(d) of the Act.
The Child’s parents have formed the view that the Education Authority have not
recognised the full extent of The Child’s additional support needs nor have they
provided sufficiently for them. On the basis of the evidence, the Tribunal does not
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share that view. The Tribunal was impressed with the evidence of Witness A, the
Head Teacher at School A Primary School and Witness B, Educational Psychologist.
Whilst it is recognised that The Child is currently refusing to attend School A Primary
School, she is noted at school to be happy, positive and has lots of energy. She is part
of a large class with a large group of friends. It is likely she is aware of her parents’
dissatisfaction with School A Primary School and the Education Authority.
The Tribunal sincerely regrets the situation which has arisen, namely that The Child is
not attending school and has not done so for a period fast approaching 2 months. The
Tribunal would urge both The Child’s parents and the Education Authority to take
urgent steps to seek to rectify the position.
The Parents and The Child’s grandmother, focused their concerns about School A
Primary School. Even if the Tribunal had been satisfied that Section 2(1)(d) of the
Act had been satisfied and overturned the Decision of the Education Authority
requiring them to issue a Co-ordinated Support Plan for The Child it does not seem to
the Tribunal that this would in fact alleviate any of the family’s fears or anxieties or
result in The Child returning to School A Primary School without delay. There is no
doubt that The Child’s family love her dearly and want what they consider to be the
best for her.
The Tribunal thanks the parties and their representatives for their assistance
throughout the proceedings.
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